TAG Act

II Calendar No. 192 118TH CONGRESS 1ST SESSION S. 1865 [Report No. 118–89] To direct agencies to be transparent when using automated and augmented systems to interact with the public or make critical decisions, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 7, 2023 Mr. PETERS (for himself, Mr. BRAUN, and Mr. LANKFORD) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs AUGUST 22, 2023 Reported under authority of the order of the Senate of July 27, 2023, by Mr. PETERS, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To direct agencies to be transparent when using automated and augmented systems to interact with the public or make critical decisions, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1865 RS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Transparent Auto- 2 mated Governance Act’’ or the ‘‘TAG Act’’. 3 SEC. 2. DEFINITIONS. 4 In this Act: 5 (1) AGENCY.—The term ‘‘agency’’ has the 6 meaning given the term in section 3502 of title 44, 7 United States Code. 8 (2) AUGMENTED CRITICAL DECISION PROC- 9 ESS.—The term ‘‘augmented critical decision proc- 10 ess’’ means the use by an agency, or by a third 11 party on behalf of the agency, of an automated sys- 12 tem to determine or substantially influence the out- 13 comes of critical decisions. 14 (3) AUTOMATED SYSTEM.—The term ‘‘auto- 15 mated system’’— 16 (A) means a set of computational processes 17 derived from statistics or artificial intelligence 18 techniques, or that otherwise rely on data about 19 specific individuals or groups, to substantially 20 influence the outcome of critical decisions, in- 21 cluding computational processes that stand 22 alone or are embedded within another process, 23 system, or application, including paper-based 24 processes; and 25 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1865 RS (B) does not include computational proc- 1 esses or infrastructure the function of which is 2 not directly related to influencing or deter- 3 mining the outcome of critical decisions. 4 (4) CRITICAL DECISION.—The term ‘‘critical 5 decision’’ means an agency determination, including 6 the assignment of a score or classification, related to 7 the status, rights, property, or well-being of specific 8 individuals or groups, the outcome of which— 9 (A) is likely to meaningfully differ from 10 one individual or group to another; and 11 (B) meaningfully affects access to, or the 12 cost, terms, or availability of— 13 (i) education and vocational training; 14 (ii) employment; 15 (iii) essential utilities, including elec- 16 tricity, heat, water, and internet; 17 (iv) transportation; 18 (v) any benefits or assistance under 19 any Federal public assistance program or 20 under any State or local public assistance 21 program financed in whole or in part with 22 Federal funds; 23 (vi) financial services, including access 24 to credit or insurance; 25 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1865 RS (vii) asylum and immigration services; 1 (viii) healthcare; 2 (ix) housing, lodging, or public accom- 3 modations; and 4 (x) any other service, program, or op- 5 portunity a determination about which 6 would have a legal, material, or significant 7 effect on the life of an individual, as deter- 8 mined by the Director. 9 (5) DIRECTOR.—The term ‘‘Director’’ means 10 the Director of the Office of Management and Budg- 11 et. 12 (6) PLAIN LANGUAGE.—The term ‘‘plain lan- 13 guage’’ has the meaning given the term in section 14 1311(e)(3)(B) of the Patient Protection and Afford- 15 able Care Act (42 U.S.C. 18031(e)(3)(B)). 16 (7) TRANSPARENT AUTOMATED GOVERNANCE 17 GUIDANCE.—The term ‘‘transparent automated gov- 18 ernance guidance’’ means the guidance issued by the 19 Director pursuant to section 3(a). 20 SEC. 3. TRANSPARENT AUTOMATED GOVERNANCE GUID- 21 ANCE. 22 (a) IN GENERAL.—Not later than 180 days after the 23 date of enactment of this Act, the Director shall issue 24 guidance that— 25 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1865 RS (1) is consistent with relevant legal authorities 1 relating to privacy, civil rights, and civil liberties 2 protections; and 3 (2) requires agencies to provide disclosure and 4 opportunity for appeal when using certain auto- 5 mated systems and augmented critical decision proc- 6 esses. 7 (b) GUIDANCE.—The transparent automated govern- 8 ance guidance issued under subsection (a) shall include— 9 (1) an identification by the Director of any ad- 10 ditional services, programs, or opportunities relating 11 to critical decisions described in section 2(4)(B)(x), 12 if appropriate, for use by agencies with respect to 13 the requirements under this Act; 14 (2) a list of automated systems that may be 15 used in augmented critical decision processes, that, 16 as determined by the Director, are not subject to the 17 requirements of this Act; 18 (3) with respect to automated systems that con- 19 tribute to augmented critical decision processes and 20 interact with the public, guidance for how agencies 21 shall design, develop, or update those automated sys- 22 tems to provide plain language notice to individuals 23 not later than the time and at the place of inter- 24 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1865 RS action with such an automated system that they are 1 interacting with such an automated system; 2 (4) the proper contents of the notice described 3 in paragraph (3); 4 (5) examples of what the notice described in 5 paragraph (3) could look like in practice; 6 (6) with respect to augmented critical decision 7 processes, guidance for how agencies shall provide 8 plain language notice to individuals not later than 9 the time a critical decision is issued to an individual 10 that a critical decision concerning the individual was 11 made using an augmented critical decision process; 12 (7) the proper contents of the notice described 13 in paragraph (6); 14 (8) examples of what the notice described in 15 paragraph (6) could look like in practice; 16 (9) guidance for how agencies shall establish an 17 appeals process for critical decisions made by an 18 augmented critical decision process in which an indi- 19 vidual is harmed as a direct result of the use of an 20 automated system in the augmented critical decision 21 process; 22 (10) with respect to critical decisions made by 23 an augmented critical decision process, guidance for 24 how agencies should provide individuals with the op- 25 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1865 RS portunity for an alternative review, as appropriate, 1 by an individual working for or on behalf of the 2 agency with respect to the critical decision, inde- 3 pendent of the augmented critical decision process; 4 and 5 (11) criteria for information that each agency is 6 required to track and collect relating to issues that 7 arise during the use of augmented critical decision 8 processes— 9 (A) to ensure that the information col- 10 lected can be used to determine whether each 11 automated system and augmented critical deci- 12 sion process covered by this Act is accurate, re- 13 liable, and, to the greatest extent practicable, 14 explainable; and 15 (B) that the agency shall make accessible 16 for use by the agency, the Comptroller General 17 of the United States, and Congress. 18 (c) CONSULTATION.—In developing the transparent 19 automated governance guidance, the Director shall solicit 20 input from experts from— 21 (1) other agencies, including the National Insti- 22 tute for Science and Technology, the Office of 23 Science and Technology Policy, and the Government 24 Accountability Office; 25 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1865 RS (2) academia; 1 (3) the private sector; and 2 (4) the nonprofit sector, including experts in 3 civil rights and civil liberties. 4 (d) ARTIFICIAL INTELLIGENCE GUIDANCE.—The 5 guidance required by section 104 of the AI in Government 6 Act of 2020 (40 U.S.C. 11301 note) may be used to sat- 7 isfy the requirement for the transparent automated gov- 8 ernance guidance with respect to relevant automated sys- 9 tems and augmented critical decision processes, or a sub- 10 set thereof, if such guidance addresses each requirement 11 under subsection (b) of this section with respect to the 12 automated system or augmented critical decision process. 13 (e) UPDATES.—Not later than 2 years after the date 14 on which the Director issues the transparent automated 15 governance guidance, and biennially thereafter, the Direc- 16 tor shall issue updates to the guidance. 17 SEC. 4. AGENCY IMPLEMENTATION. 18 (a) AGENCY IMPLEMENTATION OF TRANSPARENT 19 AUTOMATED GOVERNANCE GUIDANCE.—Not later than 20 270 days after the date on which the Director issues the 21 transparent automated governance guidance, the head of 22 each agency shall implement the transparent automated 23 governance guidance to the extent that implementation 24 does not require rulemaking. 25 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1865 RS (b) COMPTROLLER GENERAL REPORT.—Not later 1 than 2 years after the date of enactment of this Act, and 2 biannually thereafter, the Comptroller General of the 3 United States shall review agency compliance with this Act 4 and submit to the Committee on Homeland Security and 5 Governmental Affairs of the Senate and the Committee 6 on Oversight and Accountability of the House of Rep- 7 resentatives a report with findings and recommendations. 8 SEC. 5. SUNSET. 9 Beginning on the date that is 10 years after the date 10 of enactment of this Act, this Act shall have no force or 11 effect. 12 SECTION 1. SHORT TITLE. 13 This Act may be cited as the ‘‘Transparent Automated 14 Governance Act’’ or the ‘‘TAG Act’’. 15 SEC. 2. DEFINITIONS. 16 In this Act: 17 (1) AGENCY.—The term ‘‘agency’’ has the mean- 18 ing given the term in section 3502 of title 44, United 19 States Code. 20 (2) ARTIFICIAL INTELLIGENCE.—The term ‘‘arti- 21 ficial intelligence’’ has the meaning given the term in 22 section 238(g) of the John S. McCain National De- 23 fense Authorization Act for Fiscal Year 2019 (10 24 U.S.C. note prec. 4061; Public Law 115–232). 25 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1865 RS (3) AUGMENTED CRITICAL DECISION PROCESS.— 1 The term ‘‘augmented critical decision process’’ means 2 the use by an agency, or by a third party on behalf 3 of the agency, of an automated system to determine 4 or substantially influence the outcomes of critical de- 5 cisions. 6 (4) AUTOMATED SYSTEM.—The term ‘‘automated 7 system’’— 8 (A) means a set of computational processes 9 derived from statistics or artificial intelligence 10 techniques, or that otherwise rely on data about 11 specific individuals or groups, to substantially 12 influence the outcome of critical decisions, in- 13 cluding computational processes that stand alone 14 or are embedded within another process, system, 15 or application, including paper-based processes; 16 and 17 (B) does not include computational proc- 18 esses or infrastructure the function of which is 19 not directly related to influencing or determining 20 the outcome of critical decisions. 21 (5) CRITICAL DECISION.—The term ‘‘critical de- 22 cision’’ means an agency determination, including the 23 assignment of a score or classification, related to the 24 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1865 RS status, rights, property, or wellbeing of specific indi- 1 viduals or groups, the outcome of which— 2 (A) is likely to meaningfully differ from one 3 individual or group to another; and 4 (B) meaningfully affects access to, or the 5 cost, terms, or availability of— 6 (i) education and vocational training; 7 (ii) employment; 8 (iii) essential utilities, including elec- 9 tricity, heat, water, and internet; 10 (iv) transportation; 11 (v) any benefits or assistance under 12 any Federal public assistance program or 13 under any State or local public assistance 14 program financed in whole or in part with 15 Federal funds; 16 (vi) financial services, including access 17 to credit or insurance; 18 (vii) asylum and immigration services; 19 (viii) healthcare; 20 (ix) housing, lodging, or public accom- 21 modations; and 22 (x) any other service, program, or op- 23 portunity a determination about which 24 would have a legal, material, or significant 25 VerDate Sep 11 2014 00:09 Aug 23, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\S1865.RS S1865 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1865 RS effect on the life of an individual, as deter- 1 mined by the Director. 2 (6) DIRECTOR.—The term ‘‘Director’’ means the 3 Director of the Office of Management and Budget. 4 (7) PLAIN LANGUAGE.—The term ‘‘plain lan- 5 guage’’ has the meaning given the term in section 6 1311(e)(3)(B) of the Patient Protection and Afford- 7 able Care Act (42 U.S.C. 18031(e)(3)(B)). 8 (8) TRANSPARENT AUTOMATED GOVERNANCE 9 GUIDANCE.—The term ‘‘transparent automated gov- 10 ernance guidance’’ means the guidance issued by the 11 Director pursuant to section 3(a). 12 SEC. 3. TRANSPARENT AUTOMATED GOVERNANCE GUID- 13 ANCE. 14 (a) IN GENERAL.—Not later than 270 days after the 15 date of enactment of this Act, the Director shall issue guid- 16 ance that— 17 (1) is consistent with relevant legal authorities 18 relating to privacy, civil rights, and civil liberties 19 protections; and 20 (2) requires agencies to provide disclosure and 21 opportunity for appe [Text truncated for display. Full text available on Congress.gov.]